Other Columns by Horace Cooper
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Reminding one more of the Queen of Heart's Court in Alice in Wonderland rather than the highest court in our land, the Supreme Court ended its 2004-2005 last week critically crippling the property rights of red state America while dramatically augmenting the rights of blue state America.

In one case the Supreme Court eviscerated the time honored principle of property rights that your home is your castle, and has instead embraced an ancient Carolingian-like doctrine that might best be described as "wealth ultimately returns to its rightful owner." In the other case the Court expanded the rights of digital and intellectual property holders and went so far in doing so the Court was forced to rely on a discredited vicarious liability doctrine similar to that of holding gun manufacturers responsible for criminal misuse of a firearm. In practice this result will lead to holding third parties responsible for infringements that they never engaged in.

Two decisions: one red and one blue. In MGM v. Grokster the Supreme Court ruled that if a manufacturer creates a product which can be said to "induce" an individual to illegally duplicate copyrighted material, damages will no longer be limited to just the individuals who actually make the illegal copies. The manufacturer of the product or technology that the infringer used can also be held liable. Guess who's likely to have more financial assets and thus more likely to get sued? Such a decision--ostensibly to protect videos and rap music from illegal copying--will ultimately rip apart the synergistic relationship between innovation and copyright protection. Why? Because it essentially overprotects this type of digital property at the cost of holding third parties accountable for the actions of criminals. The overprotection will in turn lead to disinvestment in new technologies and innovation, because the surest way to protect oneself from these vicarious liability claims is to stay out of this manufacturing field altogether.

On the other hand, in Kelo v. New London the Court ruled that local governments may use almost any justification to seize, and demolish any person's home. This outcome dramatically under-protects owners of "real" property. In the case at hand, the Court declared that transferring property from you to any corporation, shopping mall or other business interest can be a lawful exercise of government power. Our founding fathers who argued that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights" would be astounded by this outcome.

Together these two cases represent a culmination of a radical revision of property rights. One case breaks faith with the time tested virtues of red state America, and the other affirms the progressive philosophy and values of blue state America. Although both cases ostensibly involved property rights, similarities end there.

The New London case involved real estate which is what most Americans think of when the term "property rights" is mentioned. But rather than offer support, the Court continued on the path of downgraded protection of this basic right. Over the course of the last 50 years, the Court's taken us away from this accepted maxim: "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter--but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement." Sadly now, as Justice Sandra Day O'Connor noted in her dissent, "the specter of condemnation hangs over all property."

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